Van Der Wolff v Police - [2024] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
VAN DER WOLFF v POLICE
[2024] SASC 50
Judgment of the Honourable Justice Kimber
10 April 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
This is an appeal with respect to orders made in the Magistrates Court following a guilty plea by the appellant to speeding at 117 km/h in a 110 km/h speed zone. The Magistrate ordered that an expiation fee of $50 be paid, along with prosecution costs of $150 and a Victims of Crime levy of $250. The appellant has elected to be prosecuted but entered a guilty plea on the day of trial after the speed alleged was reduced.
The appellant complains about each of the above orders. The Notice of Appeal is about 17 months out of time.
Held, dismissing the appeal:
1.The application to extend time to appeal is refused. The appeal is dismissed.
2.There is no error adverse to the appellant in the order that an expiation fee of $50 be paid.
3.Given the history of the matter, the order made with respect to prosecution costs was appropriate.
4.The imposition of the Victims of Crime levy was mandatory.

Criminal Procedure Act 1921 (SA) s 189A(2); Victims of Crimes Act 2001 (SA) ss 4, 32(2), 32(7)(b), referred to.
R v Armstrong (1983) 35 SASR 356, applied.

VAN DER WOLFF v POLICE
[2024] SASC 50
Magistrates Appeal: Criminal
KIMBER J:

This is an appeal with respect to orders made in the Magistrates Court following a plea of guilty.
On 20 October 2020, the appellant received an expiation notice for driving over 110 kilometres per hour on a road to which a speed limit sign applied. The road was the Stuart Highway. The speed alleged in the expiation notice was 121 kilometres per hour. The expiation fee for that offence was $406.
The appellant elected to be prosecuted. The Information and Summons were laid on about 25 November 2020. It was alleged the appellant had exceeded the speed limit by 10–15 kilometres per hour (specifically, by travelling at 121 kilometres per hour in a 110 kilometre per hour speed zone).
The matter was ultimately listed for trial to commence in the Magistrates Court on 6 July 2022. On that date, the prosecution indicated that it was prepared to reduce the speed alleged to 117 kilometres per hour. The prosecutor told the Magistrate that reduction would move the speed to within the ‘lower expiation level’.[1] There is no dispute that the relevant expiation fee for that lower level was $180. The above reduction having been made, the appellant entered a guilty plea.
[1] Trial transcript T2.23.
The Magistrate imposed a fine of $50; reduced the demerit points to nil as he found the offence trifling; and waived the court fees. It may be that the appellant was not advised that there would be prosecution costs of $150 and a Victims of Crime levy of $250. However, the endorsement on the Court file, signed by the Magistrate, establishes that those prosecution costs and that levy were imposed. The result was a total amount to be paid of $450. It appears the appellant only became aware of that total amount when he received a relevant notice after the trial. The appellant appears to have left the Court believing that payment of $50 would bring the matter to an end. Payment of that amount was not accepted given the further orders made.
The appeal grounds
The appellant was unrepresented at trial and unrepresented in this Court. I mean no disrespect to him by observing that his Notice of Appeal and written submissions reflect his lack of legal training. The Notice of Appeal is headed ‘Notice of Appeal against Conviction, Acquittal, Antecedent Decision or Mental Impairment Judgment’. That heading may suggest that the appeal relates to the finding that the speed limit had been exceeded. One reading of the grounds of appeal and written submissions might also support that approach, as both documents might be thought to advance a contention that the appellant was improperly induced to enter a guilty plea and should be granted leave to withdraw that plea. Nevertheless, on the hearing of the appeal those contentions were not advanced. To the contrary, the appellant made plain that he had entered a guilty plea and did not wish to seek to withdraw that plea. The appellant also made plain that he did not dispute that he had driven at 117 kilometres per hour. Given the approach of the appellant before me, it is not appropriate to treat the appeal as one involving any complaint about the circumstances leading to the entry of the guilty plea or as advancing a contention that he should be permitted to withdraw the guilty plea.
Given the approach of the appellant on the hearing of the appeal, his complaints must be taken to be directed towards the orders of the Magistrate following his guilty plea. The relevant orders were the fine of $50; the prosecution costs of $150 and the Victims of Crime levy in the amount of $250.
The application is out of time
Before turning to the orders made by the Magistrate, it is necessary to observe that the appeal is substantially out of time. The orders of the Magistrate were made on 6 July 2022. The Notice of Appeal should have been filed within 21 days but was not filed until 23 December 2023. I accept the submission of the respondent that although the appellant has not sought to explain the delay, it appears that the explanation likely lies in the appellant having sought to resolve his concerns with the orders in other ways.
An extension of time will not be granted unless, inter alia, the Court is satisfied that the proposed grounds of appeal disclose substantial grounds on the merits for an appeal and that there are prospects in the appellant succeeding in the appeal.[2]
[2] R v Armstrong (1983) 35 SASR 356, 367.
Consideration
On the hearing of the appeal the appellant was invited to make submissions as to why the Magistrate had erred in making the three orders set out above. With respect, the appellant made no relevant submission. The majority, if not all, of his submissions were directed to whether he should have been given an expiation notice in the first place and contentions about comments made by police about matters unrelated to the conduct of the appellant on 20 October 2020. I mean no disrespect to the appellant by observing that his submissions were not relevant to whether the orders made by the Magistrate following the guilty plea were appropriate.
Given the appellant did not advance any relevant submission about how the Magistrate erred in making the orders that he did, I make only the following brief observations.
On 20 October 2020, the applicable expiation fee for driving 117 kilometres per hour was $180. That being so, the appellant has not established that if an error was made in imposing a fine of $50, it was detrimental to him.
Section 189A(2) of the Criminal Procedure Act 1921 (SA) provides that where the Magistrates Court finds a defendant guilty of an offence, the Court must make an order for prosecution costs against a defendant, which costs are prescribed by regulation. At the time the appellant was sentenced, the amount was set at $150.[3] It may be accepted that the question of those costs was not raised before the Magistrate. It may be that order was made after the appellant had left the Court. However, that is not necessary to decide as, in the circumstances, I would not find the Magistrate was obliged to raise the potential for that order to be made with the appellant. Even if I were wrong in that approach, the order was appropriate. The appellant had elected to be prosecuted. The matter was listed on five occasions. In the circumstances, an order for prosecution costs of $150 was appropriate.
[3] Reg 10, Criminal Procedure (General) Regulations 2017 (SA).
Pursuant to s 32(2) of the Victims of Crime Act 2001 (SA), subject to some exceptions that do not apply here,[4] a levy is imposed upon all persons convicted of offences. Relevantly, because the Magistrate proceeded without recording a conviction, the definition of ‘conviction’ under s 4 of this Act includes a ‘formal finding of guilt.’ Under s 32(7)(b) of the Victims of Crime Act 2001 (SA), the Court may not, ‘at the time of convicting or sentencing a defendant for an offence, reduce the levy or exonerate the defendant from liability to pay it.’ At the time the appellant was sentenced the levy was $250.[5] In the circumstances, the Magistrate did not err in making the order with respect to the levy.
[4] See reg 5, Victims of Crime (Fund and Levy) Regulations 2018 (SA) for the exceptions. These exceptions are directed to expiations not issued by police and are not applicable to this matter.
[5] See sch 1, Victims of Crime (Fund and Levy) Regulations 2018 (SA).
Conclusion
The appeal is without merit. I refuse the application to extend time and dismiss the appeal.
I will hear the parties with respect to any other further orders.